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Saturday, 31 December 2016

ParkingEye are famous for claiming to have a 19 point checklist to ensure their notice to keeper documents are always compliant.

As you can see, it's not very good.

Prankster Note

It appears from this parking charge notice there was no just cause to access the DVLA for keeper data. The keeper should therefore consider a claim against ParkingEye for a breach of the data protection act. If they wish to do this they should start off with a letter before claim.

My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). You are misusing this data by attempting to claim a charge is do when no lawful reason exists. I refer you to your parking charge notice where there is no evidence the vehicle arrived at the time stated.

This is therefore a breach of data principle 1 (data must be used lawfully).

The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge which was not valid. The judge awarded £250 for a DPA breach. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

Please therefore remit the sum of £250 to myself 14 days. I will accept this sum in full and final compensation for the matter. I reserve the right to take legal action without further notice if this amount is not paid.

I am willing to use alternative dispute resolution to attempt to settle this dispute and suggest the Consumer Ombudsman is a suitable body

Thursday, 29 December 2016

Heath Parade, Graham Park Way is a well known scam site. There is a lay-by which appears to be part of the the public highway but is not. There are signs but they are far too small to be read from a vehicle. The PCM UK parking attendant lurks nearby and when a car stops races out to get a photo. A PCN is issued even if the driver gets out, gets close enough to the sign to read it, realises no parking is allowed and immediately leaves.

This scam is actively supported by William Hurley, John Davies of the IPC/Gladstones Solicitors and Bryn Holloway of the IAS, and Gladstones are now assisting PCM-UK in taking motorists to court.

The Prankster suggests a defence on the following lines.

DEFENCE STATEMENT

Site Information

The site appears to be a layby and part of the public highway and there is no information close enough to be read by an approaching driver to suggest it is private land or otherwise restricted.

The parking warden “Mrs Sunglasses” lurks nearby continuously. When a vehicle enters the layby she approaches from the rear, takes a photograph and leaves without attempting to contact the driver. A parking charge is issued even if the driver gets out of the car, gets close enough to the sign to read it, then immediately departs.

It is clear that the signs are so high and the writing so small it cannot be read from a vehicle or even by a pedestrian until right by the sign. Here is Ms Sunglasses standing underneath one of the signs.

“Mrs Sunglasses” is on site so often she even appears on Google Streetview.

It is clear then that this is nothing more than a scam. If the parking company genuinely wished to prevent parking “Mrs Sunglasses” could remain on site and politely ask drivers to leave immediately. They would also use large signs which can be seen from inside vehicles.

Defence

I assert that I am not liable to the Claimant for the sum claimed, or any
amount at all, for the following reasons:

1.I was, at the relevant date, the registered keeper of the vehicle in
question. On the material date, I stopped in the layby for a very brief period
of time. I did not see any nearby signage prohibiting this.

2.I subsequently received a Notice to Keeper from the Claimant, alleging
that a charge of £100 was due to them. I did not send an appeal to the Claimant.
or a further appeal to the Independent Appeals Service (IAS), the allegedly
independent body appointed by the Claimant’s trade body, the Independent
Parking Committee (IPC). My research revealed that the IAS, far from being
independent, is a subsidiary of the IPC, which in turn is owned and run by the
same two Directors who also run Gladstones Solicitors, the individuals in
question being John Davies, and William Hurley. Such an incestuous relationship
is incapable of providing any fair means for motorists to challenge parking
charges, as well as potentially breaching the SRA Code of Conduct. As such, the
Claimant does not come to this matter with clean hands.

3.The Claimant’s signage with the largest font at this site states “No Customer Parking At Any Time”. A
further sign with much smaller writing and higher up states “The loading bay is only for authorised
vehicles actively loading & unloading when delivering to the commercial
tenants of Heath parade”. It is submitted that if these notices are
attempting to make a contractual offer, then as they are forbidding they do not
fulfil the basic requirement of a contract, which is that each party to the
contract must offer valuable consideration to the other party, on clear terms
capable of acceptance. In this case neither the Claimant, nor their principal
the landowner, is offering anything to motorists. The notices cannot,
therefore, reasonably be construed as having created a contractual relationship
between the Claimant and the Defendant.

The
above point was recently tested in the County Court at High Wycombe, in the
case of Parking Control Management (UK)
Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen
dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you
park on this roadway you agree to pay a charge
then it would have been implicit that PCM was saying we will allow you to park
on this roadway if you pay £100 and I would agree with Mr Samuels’ first
analysis that essentially the £100 was a part of the core consideration for the
licence and was not a penalty for breach. The difficulty is that this notice
does not say that at all. This notice is an absolute prohibition against
parking at any time, for any period, on the roadway. It is impossible to
construct out of this in any way, either actually or contingently or
conditionally, any permission for anyone to park on the roadway. All this is
essentially saying is you must not trespass on the roadway. If you do we are
giving ourselves, and we are dressing it up in the form of a contract, the
right to charge you a sum of money which really would be damages for trespass,
assuming of course that the claimant had any interest in the land in order to
proceed in trespass.”

While this is a County Court decision and therefore
not binding, it is on all fours with the present case and may be considered as
persuasive. A full transcript of the Approved Judgment for the above case will
be provided in the event that this case proceeds to a hearing.

5.In addition, the Consumer Rights Act 2015 rules that if signage has
multiple interpretation the interpretation most favourable to the consumer
applies. It is clear from this the signage with the largest font should apply.

6.In the alternative, if it was held that the signage was contractually valid,
it would be impossible for a motorist to have read the terms and conditions
contained therein from a moving or stopped vehicle, and if the vehicle is
stopped, the ‘contravention’ according to the Claimant is already committed.

7.The above point was recently tested in several cases regarding Hayes and
Harlington station. There a similar situation arises as the vehicles were
charged for briefly stopping but the signs are far away from vehicles and high
up

In all cases it was ruled
that no contract was entered by performance as the signage could not be read
from a vehicle. No transcripts are available but as PCM UK were the claimant in
all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8 ,

8. The IPC code of conduct states
that a grace period must be allowed in order that a driver might spot signage,
go up to it, read it and then decide whether to accept the terms or not. A
reasonable grace period in any car park would be from 5-15 minutes from the
period of stopping. This grace period was not observed and therefore the
operator is in breach of the industry code of practice. Additionally no
contract can be in place by conduct until a reasonable period elapses.

9.Thus the signage is simply a device to entrap motorists into a situation
whereby the Claimant sends them invoices for unwarranted and unjustified
charges, for which motorists can have no contractual liability due to the terms
and conditions not having been sufficiently brought to their attention. This
activity is bordering on, if not actually crossing the boundary of, a criminal
offence of Fraud By False Representation.

Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

The regulations define an on-premises contract as: “on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;Thus a contract cannot be on-premises if it is a distance contract.

The regulations define a distance contract as: “distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

• This is clearly an organised service-provision scheme (for parking)• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer. • There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

This is therefore a distance contract.

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.

Alternatively if the contract is on or off-premises, the information rules still apply and the contract is not binding as per either 9(1) or 10(1).

Additionally, the charge of £100 is a penalty and unfair consumer charge. The leading
case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was
ruled that the penalties rule was engaged but the charge was not unfair because
the motorist had the bargain of 2 hours of valuable free parking in exchange
for the risk of paying £100 for overstaying. The risk was clearly brought to
the attention of the consumer in a huge font. Here, there is no valuable
consideration on offer and no bargain for the consumer, and the charge is
hidden in small print. It is submitted that no motorist would agree to pay £100
instantly on stopping and this is therefore and unfair consumer term in breach
of the Consumer Rights Act 2015..

1 In order to issue parking charges, and to pursue
unpaid charges via litigation, the Claimant is required to have the written
authority of the landowner, on whose behalf they are acting as an agent, in
this case Peel Land & Property Ltd. No evidence of such authority was
supplied by the Claimant at any time, and the Claimant is put to strict proof
of same, in the form of an unredacted and contemporaneous contract, or chain of
authority, from the landowner to the Claimant.

1 In addition to the £100 ‘parking charge’, for which
liability is denied, the Claimant’s legal representatives, Gladstones
Solicitors, have artificially inflated the value of the Claim by adding costs
of £50 which I submit have not actually been incurred by the Claimant, and
which are artificially invented figures in an attempt to circumvent the Small
Claims costs rules using double recovery. The Court is invited to report Gladstones
Solicitors to the Solicitors’ Regulation Authority for this deliberate attempt
to mislead the Court, in contravention of their Code of Conduct.

1 The Court is invited to dismiss this Claim, and to
allow such Defendant’s costs as are permissible under Civil Procedure Rule
27.14.

Counterclaim

It is not possible that a valid parking charge exists for the following reasons

The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance

The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer

Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

There was therefore no valid reason to apply for my keeper data from the DVLA.

Additionally the operator contract with the DVLA only allows them to obtain data for parking contraventions and not for briefly stopping.

My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). You are misusing this data by attempting to claim a charge is do when there is no possibility a lawful reason exists. Additionally you may only obtain and use this data from the DVLA for parking, and not for stopping.

This is therefore a breach of data principle 1 (data must be used lawfully) and 2 (data must only be used for the purpose provided).

The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The signage there has the equivalent forbidding wording to the signage in this case. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

The Prankster has been contacted by a ParkingEye employee who felt it necessary to speak out because they felt that the company was run by some of the greediest people they had the misfortune to meet, and some of the practices just screamed abuse.Sadly ParkingEye are typical of the parking industry. and this behavior is duplicated in many (but not all) parking companies.

ParkingEye's early success was due to its gung ho approach. Contracts while making business sense only sought to delay proceedings so the tactic was to bang the kit in and deal with the ramifications later on. This caused problems later on with POPLA and the courts, because there was no paperwork to back up the claim to be able to operate. This was overcome by the successful approach of persuading POPLA to accept witness statements instead of contracts, this allowing POPLA to be deceived. The courts proved just as easy, with judges persuaded to accept a contract must be in place even when it was not. A number of freedom of information requests showed how the courts were deceived to believe a contract was in place when it was not.

Some installations were expected to cause trouble simply because of the client's expectations. These were known as the "rape and pillage" installations. Bang them in, make as much money from the first several weeks to cover costs, and if problems occured, try and win the client around. If that didn't work just pull it out and/or sue the client for breach of contract.

ParkingEye focus on what they call the top 100 sites. These generate the lion's share of ParkingEye's revenue. Some of the top earners include:

As you can see, a significant number of these are hospitals. The top 100 has seasonal variations. Some sites like the NHS request full switch off during Christmas and New Year. ParkingEye always try to discourage that kind of behaviour because it makes the beancounters cry. NHS are a major cash cow but ParkingEye are scared to lose them so bend the contractual obligations and call it "goodwill".

Sites would usually sit in two camps
1: Earn well then tail of as people become wise to rules etc. Although the BPA require special signage when a new site goes live ParkingEye never do this because it would hurt the "rape and pillage" revenue
2: Seasonal, typically making money in the summer season, with low PCN rates through the winter

ParkingEye had a clever system which could boost revenue for a particular financial period if required.There were some delays built into the central business system which allowed for sense checking the PCNs. This allowed for problems to be spotted (for example if a site generated an unfeasibly large amount of cases, chances are it was a technical problem) and could be rectified before incurring costs of DVLA enquiries and postage.

However at critical points in the financial year, this time buffer was removed. So let's say the fiscal year end is 31st Dec. Under normal running all data submitted and checked by the 30th would not be sent until the 1st January. Under improve revenue mode, everything submitted and checked by the 30th would be sent on the 31st, with no sense check delay.

What this meant was the time available to sense check and cancel pcns disappeared. So PCNs could be generated on a car park that had a technical issue which normally would have been wiped. The infamous 19 step checking would still take place, so technical issues aside, the PCNs seemed sound enough.

Another way to boost revenue was to alter the grace period. This favourite tactic was called rewashing.cases. Now because the BPA mandate that every car park should have a
reasonable time to enter, review terms and leave as standard ParkingEye allows 10 mins on every site. So whatever the signage allows you would get a further 10 minutes on top.

Some sites would for management purposes have this period set to a longer period, say 30 minutes. This was typical if ParkingEye expected a lot of flack from the motorists/clients.

So you'd visit a site and stay say 2hr 25. You know you're over..and hope that you don't get a PCN. Well guess what you wouldn't. That was until the amount of PCNs wasn't shaping up to what was budgeted. So what would happen is an instruction would go to the ops team to drop the extra 30 minutes down to say 15 but (and here's the kicker) rerun all visits for the previous two weeks against the new times and issue the PCNs.

So you could visit on the 1st of the month, stay 2hr 25 and not get a PCN. Then on the 15th ParkingEye would decide to re-review your visit against a a new maximum time limit of
2hr 15. Guess what's now coming your way.

One thing to note that may be of interest to motorists is that in the majority of sites, there is no planning permission. ParkingEye operate a model of retrospective planning. So get the go ahead from the client, bang the system in and then if there was any noise file a retrospective planning order.
The point was to save on costs. And it worked.

Prankster Note

The Prankster has no reason to doubt any of the information freely given, as it ties up with other information he has.

ParkingEye operate at hospitals in defiance of government guidelines which stipulate pay on exit methods should be used, and contracts should not be let on any basis that incentivises additional charges. ParkingEye run a 'guess on exit' scheme where motorists have to guess the duration of their stay with no help from ParkingEye. This has proved very successful for them as many motorists guess wrongly. At Northumbria NHS, for instance, ParkingEye were generating PCNs at the rate of £1,000,000 a year.

It is possible to run a fair car park regime at hospitals. Total Parking Solutions manage the Marlborough Street car park for Bristol Eye Hospital and FoI requests show minimal PCNs were issued at this site, and none for overstays. This is because this is a true pay on exit scheme. When the motorist leaves they are informed of the correct amount to pay. Unsurprisingly, every single motorist pays the correct amount when given the right information.

It is clear that ParkingEye's "rape and pillage" approach to car park management is unfair to the motorist and particularly unfair at hospitals where the people targeted will be the sick, the elderly and the vulnerable members of society. These are the people who can least afford the astronomic £100 charges which ParkingEye entrap people into incurring.

Wednesday, 28 December 2016

Although most hospital parking is free in Wales, it is not at Heath hospital Cardiff, where the management unwisely sold off the car parks to Indigo Park Services Ltd.

Indigo have now started cashing in on this, making staff life a misery by failing to issue permits in a timely manner, and then penalising vehicles for not displaying a permit.

Wardens use a predatory patrol schedule to maximise the charges they can issue. Ticketing continues up until 3 am, and it also appears Indigo staff go out to ticket after a nursing staff handover has occurred each and every day. Some tickets have even been issued when the registered keeper was not on shift, and some vehicles have been issued 2 tickets per day.

Indigo are also abusing the DVLA link by getting keeper data for free via the NHS and Local Authority link, rather than paying the normal parking company charge of £2.50.

The charge for not displaying a permit is £10, rising to £20 after 14 days. However, Indigo then shuttle the charge around debt collection companies to artificially inflate the cost to £128.

Since April 2016 over 1,000 tickets have been issued to staff, with over 100 of these having already gone to court.

Prankster Note

Although it is possible a charge of £20 may be valid, the artificial inflation is £128 is not.

In ParkingEye v Somerfield Stores HHJ Hegarty QC ruled that a debt collection addition of £75 was probably not valid and in ParkingEye v Beavis it was ruled that charges must be plainly in sight to escape being an unfair consumer charge.

POFA 2012 sc 4 also rules that the keeper can only be pursued for the charge on the notice to keeper, and not for additional charges.

An attempt to use keeper data for charges which are not valid is therefore possibly a breach of data principles 1 and 2, which would leave the parking company liable for a data protection claim. This may be compounded if Indigo did not use the correct method to get data from the DVLA.

The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist awarded 3250 wen the parking company pursued a charge which was not valid. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

It appears that Cardiff court is going to be clogged up with parking cases for the foreseeable future.

Sunday, 25 December 2016

A motorist received a parking charge incurred while shopping at their local ALDI. Here is their report.

I just had my appeal turned down by parking eye even though I sent them proof of purchase because they said I did not enter my registration number but I got angry and and thanks to your blog I plucked up the courage and contacted Aldi customer services they replied within 24 hours and this was their last email to me. So I recommend getting in touch with Aldi

Thank you for your recent email containing the proof of purchase from your visit to our Blaby store. On this basis, I am happy to contact ParkingEye and get this charge cancelled. As you are now aware, ParkingEye manages this car park using Automatic Number Plate Recognition (ANPR) cameras that monitor cars entering and leaving the car park. It also operates a terminal in store allowing customers to enter their vehicle registration. This system is in place to ensure free parking for our customers.

I hope that this satisfactorily resolves this matter for you. We value your custom and hope that you will continue to shop with us.

An unhappy customer is a potential ex-customer. It makes no sense for ALDI to penalise their customers for parking, so it is s sensible decision to cancel the charge. The Prankster recommends that genuine ALDI customers contact ALDI customer service if their charge is not cancelled by ParkingEye.

Saturday, 24 December 2016

The Prankster has received significant numbers of complaints from motorists who received parking charges from Excel Parking even though they purchased tickets. When they appeal, Excel claim to have no record of their purchase and therefore dismiss the appeal.

Today, at least one of the reasons why their machines fail has become apparent.

A motorist visited the Peel Centre for a KFC. Although the Peel Centre is one of the worst signed car parks in the country, his years as a Fast Jet pilot allowed him to take in large amounts of poorly presented yet critical data (their signage). HI therefore bought a ticket. Although he checked that his registration was correctly entered, he did not check the rest.

This is what he received. Pay attention to the date of issue.

Excel Parking were only awarded the contract to manage the car park on 1st October 2012, so issuing a ticket in 1998 is obviously impossible.

The Prankster therefore thinks the following is happening.

On occasion, a pay machine will encounter an error and reset itself. When this happens, the date resets to 1 Jan 1998 00:00. The machines should synchronise themselves using NTP or some other method, but this obviously does not always happen. From the time on the ticket it appear the machine has failed to synchronise for a considerable period - 49 minutes.

The ANPR cameras are not synchronised correctly with the time on the pay machines. So when Excel download the data from both ANPR and pay machines they find a vehicle which parked in 2016, but no matching payment; the payment of course, according to them, happened in 1998, which is before their contract even started.

What Happened Next

Excel issued the motorist with a parking charge. Luckily the motorist had kept the ticket, and was surprised to find the error. The motorist appealed to Excel, sending a copy of the ticket. Any reasonable person would now expect Excel to cancel; however this does not take into account the greed and lack of morality of their owner, Simon Renshaw-Smith.

Excel refused the appeal on the grounds that the motorist ‘did not comply with the Terms and Conditions of parking by failing to purchase a valid P&D ticket’.

Excel's view is that if their machines issue faulty tickets then it is the motorist's fault and not theirs. The motorist should minutely scrutinise their ticket and if there is any mistake they should accept the loss of their money and leave the car park.

The Prankster's view is that this would lead to the absurd situation where Excel make more money when their machines have faults than when they are operating properly. Given the frequency which the machines are out of operation at the Peel centre it appears that Simon Renshaw-Smith has come to the same conclusion and he prefers to rake money in by running poorly maintained and/or out of date systems than by running a proper parking operation.

According to a security guard at the Peel Centre, the machines are 'always breaking down'

The Options

As the IAS is to all intents a kangaroo court and is staffed in The Pranksters opinion, by assessors who are either corrupt or incompetent, led by the inept and bungling Bryn Holloway there seems little point in appealing to them.

Instead, The Prankster suggests contacting the manager of the Peel Centre, Adam Jolley, and ask him to get the charge cancelled. His email address is a.jolley@peel.co.uk.

Alternatively his colleague Nicola Dearden may also cancel the ticket.

Given this state of affairs, there was no just cause for Excel to have applied for keeper data from the DVLA. Their machine failure is their own responsibility and does not excuse them. There has therefore been a possible breach of the Data Protection Act, and the motorist can potentially sue Excel for this. An amount of £250 would normally seem to be appropriate. However Excel have compounded this by continuing even when their own mistake is pointed out, which means a larger amount would not seem amiss.

The Prankster suggests considering banging out a letter before claim at the appropriate time.

Friday, 23 December 2016

Parking companies have for some time been exploiting the legal system by issuing claims to wrong addresses. This results in innocent motorists getting CCJs they know nothing about, which can mean they lose their house and job through no fault of their own.

Predatory companies like Gladstones Solicitors, BW Legal, Wright Hassall, MIL Collections and SCS issue claims without doing any due diligence which means that the vast majority of cases have no validity - in ParkingEye v Beavis it was revealed ParkingEye cancel 65% of charges on appeal, and POPLA cancel a further 45%. This means that something over 80% of all parking charges are issued invalidly. This number is increasing - in 2012 ParkingEye cancelled only 55% of charges on appeal.

The roboclaim industry specialises in churning out these claims and adding on spurious extra charges in the full knowledge that although most of the claims have no basis, a large number of people will either be frightened into paying up, or will fail to get the claim papers and so end up with a CCJ without knowing about it. If claims are defended they deliberately ignore practice directions and conduct themselves in a shameful manner knowing that judges in the small claims court rarely issue sanctions. This cynical exploitation of the legal system should not continue.

Today the Government announced it was taking steps to end this predatory situation.

Thursday, 22 December 2016

Mr B was not the driver. Excel do not use the keeper liability provisions of the Protection of Freedoms Act 2012, and so attempt to rely on the assumption the keeper was the driver.The HearingMr Wilkie was the lay representative for Mr B. Excel, through BW Legal, used an outside representative.As the Keeper was not the driver, he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for Excel. As Mr B was not the driver, there would be no way they could offer any proof.The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.No costs were awarded.

UKPC were claiming £900 for 6 unpaid parking tickets on a residential site. Mr McCarthy was counter-claiming harassment for 40 or so wrongly issued tickets. UKPC were using SCS law to process their claim.

Guest report

I met Mr Taylor, the representative of SCS, at the door of the courts and after a brief chat I found him to be a nice enough man and who told me he represents SCS and UKPC on numerous occasions as a freelance solicitor in various regions of the country. We entered the court and the judge explained to me how the proceedings would go (as I wasn't legally trained) and that I would hear UKPC's arguments first and then would be allowed to give my account.

Mr Taylor of SCS pitched his claim first. The witness statement given by UKPC had stated that they had a copy of my lease, but they had in fact attached a copy of another apartment block (not connected) altogether. However they had spotted this and at the court brought a copy of my lease (handed to them by the managing agent) and stated it was an error in submittal.

The judge allowed them to submit this. The lease stated that "I would not park in an obstructive location in the communal areas". I did object to my lease being handed in on the day as I had no time to cross-reference or check if it was my lease at all but the judge stated that we could do one of two things; first being proceed on the assumption it is my lease or stop proceedings and obtain my lease from the land registry. I chose to let them proceed.

Mr Taylor stated that they had been employed by my managing agent to manage the site and that there was a legitimate interest for doing so referencing the Beavis case.

There were 6 tickets in total being claimed referenced a-f with two issued before the DVLA investigation of UKPC and 4 after. Mr Taylor went on to state that each ticket was issued and then when not paid passed on to debt recovery companies etc to bring the claim up to circa £900.

My opportunity came to speak. I referenced my witness statement and the points raised in the statement.

My first point was that the contract UKPC were operating under was dated 2012 for a period of 3 months. However the judge ruled that the contract carried on by conduct and as UKPC were still on site the contract was deemed to be in place.

My next point was that the contract stated that it was on the basis that UKPC operated within the rules of the BPA and that they had not been. I touched on the signage being unilluminated and there not being a P sign at the front of the premises which has now been put in place. I had attached a copy of the British Parking Association t&c's and code of practice to my statement but did not bring a copy to the court and did not make my point clearly enough on this. The judge did have a copy but failed to review and in haste I did not prompt her to.

My next point was that the signage was strictly prohibitive and that it did not allow parking and as there was no offer to park beavis did not apply. With the managing agent sending my lease over I don't think this argument stood.

I also stated that I was not the driver that my brother and wife both used my car. I stated that UKPC had not followed the rules of schedule 4 of the Protection of Freedoms Act as the tickets and notice to keeper did not have the time periods stipulated on them nor did they show any grace periods. Again unfortunately I did not have schedule 4 with me as I naively assumed that the judge would have had this information. Perhaps I should have asked to stay proceedings until I had the information printed as she had offered to do with my lease. In judgement the judge stated that it was most unfortunate I did not have this with me to rely upon.

My main point was the reference to the mail online article I had included in my witness statement regarding the practice of UKPC doctoring tickets. I argued that during the period they had been suspended by the DVLA their equipment was obviously not adequate and open to fraudulent activity. In her judgement she agreed.

UKPC's witness statement said that this was an isolated incident in one region of the country however the judge stated that they had failed to say what region of the country (perhaps cunningly) and that it could have been Watford. For this reason the judge dismissed the first two tickets in UKPC's claim as they were issued in 2014 and early 2015. I argued that UKPC were still doing this as my car was never parked in the location during the time periods they were saying it was and said in court I am fully stating that UKPC are still doctoring tickets. I made no exception and stated that was exactly what I was saying. Mr Taylor of SCS stated that it was highly unlikely that a company already found guilty of doctoring tickets would continue to do so and the judge in her statement agreed on this point as she had no evidence to show that they were still carrying this out.

I raised the point that I was counterclaiming for harassment and that although we were discussing 6 tickets issued that I had in fact received between 30 to 40 tickets and I had attached numerous emails I had complaining to my management company that the tickets were issued out of the time scales and days that the scheme was not in operation. On a few occasions the managing agent had replied apologising and stating that they had brought up the issue with UKPC. Mr Taylor in his statement said he did not want to even touch on my harassment claim as he believed it fell "so foul of outlining harassment under the act".

The judge however in her statement stated that she believed I was a credible and truthful witness and that I had been clearly upfront about everything from the start and during cross examination. She stated that with the 30/40 tickets I would have received chasing letters and debt recovery letters. That UKPC would have obtained my details from the DVLA incorrectly and for that I would have felt distressed and alarmed by this. I was claiming £1000 but did not reference a precedent to this which she felt was unfortunate. However she said in the absence of this that she found in my favour for the exact amount of the four tickets she had found in favour of UKPC tickets (£580) with us both having to pay each others costs.

Having seen a copy of my lease the judge found in favour of UKPC on four of the parking tickets. She stated that it was most unfortunate that I did not have the POFA sch4 and BPA guidance with me.

Both parties asked for leave to appeal, which was refused.

Prankster Note

This was an extremely creditable performance by Mr McCarthy up against an experienced advocate. If this hearing could be held again, it is likely Mr McCarty would succeed in getting all the charges cancelled. Sadly, time travel is not yet possible.

The case underlines the need to bring copies of everything to court with you. This is why lawyers always trundle around with huge suitcases - they are full of paper relating to their cases. Bring a copy for yourself and a copy for the judge. You should have already sent the other party a copy. Although it shouldn’t be necessary to print out statutory legislation - judges all have terminals on the desk linked to the MoJ portal where they can easily look up statutes - this case shows you cannot rely on the judge putting in the legwork.

The judge correctly pointed out that the DVLA was accessed incorrectly. This would be a breach of data protection regulations, and for each breach an amount would be payable.

The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist awarded £250 when the DVLA details were accessed with no cause.

A sum of £250 per breach would therefore seem to be in order.

Mr McCarthy can now consider claiming £250 for any tickets where UKPC accessed the DVLA incorrectly. This would be for a data protection breach, separate to the harassment claim. As there are 30-40 of these tickets, a claim of £7500 - £10,000 would be in order, and Mr McCarthy may want to get legal advice before embarking on this.

Of course, any new tickets invalidly issued by the parking company can also be added to the claim.

Monday, 19 December 2016

Exactly a year ago, Mrs C had visited the Sports Direct gym in Keighley, where she is a member. The system there is that members key their registration numbers into a terminal which is linked to Excel’s systems, and that entitles them to 2 hours free parking. The vehicle was in the car park for a total of 92 minutes.

A few days later, Mr C, who is the registered keeper, received a £100 parking charge notice from Excel. Mrs C immediately contacted Excel, confirming that she had been the driver, and attaching a print-out from the gym to verify the fact and length of her visit. But Mr C received further correspondence from Excel, which showed that they had completely ignored the fact that the driver had been named, and they were continuing to pursue him as keeper. He declined to engage with the IAS, having an aversion to marsupials.

Eventually, BW Legal issued a claim on behalf of Excel, and the case was listed for 4 October. BW Legal sent the usual complete and utter nonsense of a witness statement, signed by some part-qualified non-entity who clearly knew diddly squat about the case, or anything else for that matter. Bargepole prepared all the court documents on behalf of the defendant. These included statements from other gym customers who had experienced similar unfounded claims, and a statement from the gym manager that the system installed by Excel was not fit for purpose, since it did not provide any receipt, or any form of confirmation that the entry of the registration number had been accepted.

At the first hearing, the Judge agreed that there could be no case against Mr C, but that Excel could apply to have Mrs C to be conjoined as second defendant if they wished. They made the application, and Mrs C filed her own witness statement confirming the events as previously described.

The adjourned hearing was over in a matter of minutes, as nobody from Excel or BW Legal showed up. DJ Wright agreed that this crossed the threshold of unreasonable behaviour, and awarded the defendants’ ordinary costs, plus further costs as per CPR 27.14(2)(g), meaning that Excel were hit for £412 in total.

The behaviour of Excel, and their joke solicitors, has been utterly disgraceful throughout this entire saga, and there may be further repercussions still to come.

Prankster Notes
BW Legal has been awarded “Legal Team of the Year” at the CICM British Credit Awards 2016. The Chartered Institute of Credit Management (CICM) is the recognised standard in the credit and collections industry and is Europe’s largest professional association for the credit community

It is incredible that such an incompetent no-hoper legal firm like BW Legal are apparently the best of the legal teams in the credit industry. This means there are worse legal teams out there**

BW Legal CEO Sean Barton claims to be a solicitor but his team seem to fail to understand the basics of litigation, including how to obey practice directions when filing particulars of claim or signing a claim. Sean Barton's team file template witness statements with incorrect facts and with matters clearly not in the knowledge of the witness. His understanding of the legal situation around parking is deeply flawed and the advocates Sean Barton uses are poorly briefed. His team send out letters deliberately misrepresenting the situation and provide false information to try and bully motorists into paying charges they do not owe. On the phone, Sean Barton's operatives lie and provide false information.

Sean Barton advises his clients to file claims they have no hope of winning if properly defended apparently in the hope that the victim does not realise the true legal position and so pay up rather than defending the claim.

His operatives are so incompetent they expose their clients to large counterclaims and to extra costs under the unreasonableness rule.

Sean Barton therefore appears to the Prankster to be a particularly incompetent solicitor, who is bringing the legal profession into disrepute and it is poor reflection on the legal regulators that they allow such people to continue in practice.

It is an even worse reflection on the legal regulators that there are apparently many more incompetent people than Sean Barton people in the credit industry, as the 2016 award clearly show.

Happy Parking

The Parking Prankster

**This does not include the other incompetent no-hopers Gladstones Solicitors as they were not in the running for the award.

Saturday, 17 December 2016

Mr Brass parked in the car park by Iceland in Carlisle and paid the wrong meter, As it was not clear that there were two car parks covered by different schemes, he did not consider a charge should be paid. Mr Brass purchased a ticket from Horizon Parking rather than Northwest Parking Enforcement Ltd

He phoned to dispute the charge, but NPE were rude and dismissive on the phone.

He wrote to appeal the charge but his appeal was refused.

Northwest Parking Enforcement Ltd then sold the right to sue for the disputed charge to MIL Collections.

In the hearing Mr Brass argued there is no clear separation between the two car parks, which there isn't. The judge agreed and dismissed the claim, awarding Mr Brass his costs.

It is clear that no parking charge should have been issued in this case, and this was a valid reason to contest the hearing.

A more fundamental reason is that the alleged debt was never assigned to MIL Collections in the first place. When MIL are confronted with this line of defence they now do not even usually bother to turn up for hearings (although they do try the odd one here or there).

MIL claim they purchased the alleged debt from NPE on 20/05/2016 and produced an undated deed of assignment to 'prove' this. The deed was not witnessed properly and did not contain any details of Mr Brass's charge (or indeed any charge).

A big problem is that exactly the same undated deed of assignment was used to 'prove' they purchased an alleged debt from Mr N. M. on 07/04/2016.

Here is the wording used on all known MIL Collection deeds of assignment. (This is not from an NPE deed, this is from a JAS Parking Solutions Ltd deed)

It is clear from this wording that the same deed cannot be used to support purchases of alleged debts on different occasions. It would therefore appear on the face of it that MIL are committing perjury when they claim in court that debts have been validly assigned because the debt are being purchased at various intervals after the deed has actually been signed, and not at the time of signing the deed itself.

It is therefore worth considering filing a claim against NPE if they have sold your data to MIL. A claim of £250 would cost £25 to file.

It is also worth considering a similar claim against MIL. As the deed of assignment is not valid, they are also using personal data improperly, and a claim of £250 would appear to be justified.

Start with a letter before claim

Dear Northwest Parking Enforcement Ltd,My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). You obtained this data from the DVLA and your contract with them only allows you to sell this data to third parties if you have the DVLAs written permission. You did not have this permission.This is therefore misuse of my my personal data.The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.In this particular case I estimate £250 would be a reasonable amount to claim. Please therefore remit the sum of £250 sum to myself 14 days. I will accept this sum in full and final compensation for the matter. I reserve the right to take legal action without further notice if this amount is not paid.

I am willing to use alternative dispute resolution to attempt to settle this dispute and suggest the Consumer Ombudsman is a suitable body.

In August 2014 Mr N M's vehicle overstayed by a few minutes in Central Car Park, Peter Street, Carlisle, a pay & display car park owned/run by Northwest Parking Enforcement Ltd. The vehicle was given a PCN detailing a 'charge' of £100 reduced to £60 if paid within 28 days.

NPE sent a notice to keeper and few threatening letters from themselves and a debt collection agency.

Fast forward to April 2016 when MIL Collections become involved having allegedly purchased the 'debt' from Northwest Parking Enforcement Ltd.

Guest report by Mr N M

On 7th July 2016 MIL Collections issued a claim form from the bulk claims centre Northampton in the amount of £150 comprising 'Debt' amount £100 with £50 'Admin' costs. The claim form was 'signed' by Alan Davis, Managing Directory. I acknowledged the claim and stated my intention to defend.

On 21st July I sent MIL a CPR Part 18 request for further information, specifically asking for confirmation that they held the original deed of assignment and when/where it could be inspected.
No response to this request was received despite 2 written reminders and several emails.

An initial defence was lodged, the main points being no valid assignment of debt (no response to CPR request received) and any such assignment being Champertous.

MIL requested transfer of the case to Truro however it was assigned to Peterborough County Courts, my nearest, and also allocated to the Small Claims track for a hearing date of Friday 16th December.

MIL went through their standard MO, namely a Part 36 offer of £100 followed by an open offer of settlement of £50. Both were ignored. I responded to the Part 36 offer pointing out that Part 36 does not apply of course to the Small Claims track.

On 27th November, I received MILs Court Bundle, containing as follows (amongst other things)Witness statement by Christopher Barrett, head of Legal for MIL CollectionsDeed of Assignment between Northwest Parking Enforcement Ltd & MIL CollectionsNotice of Assignment sent to mePhotocopies of my car on day of parking, signage, terms and conditions, close up of expired ticket in my car Contemporaneous History notes of timeline of events My original CPR Part 18 request letter

Bear in mind at this time, I had already filed my witness statement and defence. My defence was only slightly amended from the original holding defence – I just added the extra times I had written and emailed MIL collections regarding the CPR Part 18 request.

There were several glaring issues with MILs Court Bundle as follows:
The Deed Of Assignment was not dated or witnessed. It did not make any reference to me in person or any reference to the original PCN, nor the 'debt' amount assigned.
The photocopies were of very poor quality and were ineligible - in particular the expired ticket.
The Terms and Conditions photocopy did not show the site location.

On the court date I was approached by a representative MIL collections had sent and asked if I wanted to discuss the case i.e. make a settlement offer. I offered £25 which she declined. Neither Alan Davis nor Christopher Barrett showed up, not surprisingly.

The Judge began proceedings – she stated she had some questions for both MIL and myself but asked MIL to state their claim. In essence, the representative tried to claim there was a case to answer based on a contract having been formed and broken and there being a valid assignment of debt. When I was asked to speak I emphasised MILs lack of compliance with my CPR request and my defence being based on no valid assignment of debt and therefore the claim being champertous. I also pointed out the issues with the Court bundle.

The Judge had also picked up on the deed of assignment namely that it was not witnessed, nor dated. She pointed out that my CPR Part 18 request was not applicable to small claims however she stated that nevertheless, MIL had a duty to abide by CPR and respond to my perfectly reasonable requests for the documentation stated in their claim in order that I may defend. She said it was particularly galling that the Court Bundle contained a timeline where my requests and reminders for information had been recorded as well as the original request itself.

She also picked up on the poor quality of the photocopies. The representative said she agreed and offered to show her better quality ones that Christopher Barrett had texted her that morning but the Judge was having none of it. She also asked for a breakdown of MILs £50 admin charges which the representative was unable to answer.

She also questioned the representative on the location and size of the (T&Cs) signage which was not clear from the Bundle. The representative was unable to answer.

In summary she threw out the case based on the deed of assignment not being valid. She said there was no need to consider the Champertous argument given this. She also slated MIL for their behaviour regarding CPR and their holes in the Court Bundle.

I asked for my costs to be considered namely loss of earnings, travel and admin expenses. She denied the admin but allowed £95 loss of earnings and £10 petrol i.e. £105 in total.

Prankster Notes

MIL Collections get the parking company to sign an undated 'Deed of Assignment' which does not have any references to parking charges, amounts and keeper names. They then at a series of later dates actually purchase the right to take legal action for disputed charges. During court claims they trot out the undated 'Deed of Assignment' and pretend it was signed at the same time as they purchased the right to sue.

Tuesday, 13 December 2016

Link Parking entered into an agreement with Isis Cardiff Management Company Limited to control unauthorised parking at Overstone Court, Cardiff. Unfortunately they decided it was in their remit to control authorised parking as well, and according to details given to the Prankster went into a feeding frenzy from day one, issuing tickets to residents like confetti.

This type of ticketing has never been legally supported and there is plenty of case law around to support the view that the lease has primacy of contract, and that this cannot be unilaterally overridden. So if your lease allows you to park without conditions, then a parking company cannot require you to display a permit to park.

There is now a persuasive judgment regarding Overstone Park in Cardiff. DDJ Metcalf has a number of pertinent comments in his judgment of the case of Link Parking v Parkinson, including this one

This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.

This is a persuasive judgment supporting the view that all tickets issued by Link to residents parking in their own spaces are not valid.

Getting your money back

If you have been issued a parking charge, and Link got your data from the DVLA, then it is likely they committed a data protection breach by obtaining keeper data for land where they had no rights to issue tickets. The case of VCS v Phillip establishes that £250 is an amount which court will award. This is a minimum. Courts have awarded up to £750.

If you have paid a parking charge then you can attempt to get your money back from Link.

If you have been taken to court and lost because you did not use the right legal arguments, then it might be too late to appeal the judgment - you usually only have 21 days, and you might not be able to introduce new arguments anyway - the appeal will normally only be allowed on points raised in the initial hearing. However, the data protection breach still applies, so you may be able to 'balance the books' by claiming for the data protection breach. If you are still in time, and raised the point that you were a resident then you may be able to appeal.

With all of these issues you should follow the correct legal procedures. First issue a letter before claim, and then if there is no reply, or you cannot come to an agreement, follow up with an actual claim.

If the amount is large, or if you do not fully understand this, you should get legal advice on the course of action to take.

It is important to note that this only applies to parking in your own space. Different arguments apply to similar situations and you may not be able to claim for all of these .This includes;

Parking with permission in someone else's space

Parking without permission in someone else's space

Parking in communal areas

Parking in visitor spaces

These charges may or may not be valid, and would need an examination of the all facts.

Sample letter before claim for parking in your own space

Dear Link ParkingLetter Before ClaimIn 2016 you issued me with a number of parking charges for parking in my own space without displaying a ticket.[details here]My existing lease gave me full permission to park, and you had no rights to unilaterally override that. There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. There are a number of persuasive judgments in the lower courts. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.Of particular interest is Link Parking v Ms Parkinson C7GF50J7 [2016], which concerns this building, Overstone Court. The judge examined the lease and found that the parking company could not override the tenant's right to park by requiring a permit to park.You obtained my personal details from the DVLA for the purpose of pursuing a parking charge, However, there was never any possibility this charge could be valid. Only I have the right to enforce parking regulations on my own space. My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). As there is no possibility that any monies were owed to you by myself, then attempting to charge a parking charge is caused harassment and personal distress to myself, is using it in ways which violate principles 1 and 2 of the DPA, and s13 of the DPA provides for financial compensation for this.

The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, is persuasive that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

I am therefore claiming £250 from yourself for misuse of my personal data under s13 of the DPA.

In addition, I paid the parking charge of [£100] and I therefore require immediate repayment of that amount.

The total payable is [£350].

You have 14 days to remit this amount to myself. After that time I may file a claim without further correspondence.

I am willing to consider alternative dispute resolution and suggest the Consumer Ombudsman.

Other sites

Link Parking have a large number of residential sites. While you may be able to claim back any monies paid and for data protection breaches at these sites, each case will turn on the facts, which will need an examination of the lease.

You can claim back for up to six years. However you should bear in mind that if there are too many valid claims, Link Parking may not have enough money to pay back all claimants.

About Me

The Parking Prankster is dedicated to putting the fun back into parking. Sometimes there is a serious side too, as the prankster highlights scams and ruses used by the darker side of the parking industry to part you from your money.
Please contact me with parking stories you think would make interesting blog posts either via email prankster@parking-prankster.com or my twitter feed, @ParkingPranks